Marocco v. Brabec

299 So.3d 416

Peter MAROCCO, Appellant/Cross-Appellee,

v.Russell BRABEC, Rose Marie Brabec, and Design & More, Inc., a Florida Corporation, Appellees/Cross-Appellants.

No. 1D17-894

District Court of Appeal of Florida, First District.

April 5, 2019

Mark V. Murray, Tallahassee; and Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant/Cross-Appellee.

Davisson F. Dunlap, Jr., of Dunlap & Shipman, P.A., Tallahassee, for Appellees/Cross-Appellants.

Wetherell, J.

This case arose out of a dispute over interior design and construction work performed by Appellees on Appellant Peter Marocco's properties in 2008. The litigation in the trial court, which spanned more than eight years (and four circuit judges), was acrimonious and took many twists and turns,¹ most of which have no bearing on the issues in this appeal and cross-appeal. Thus, what follows is only a brief overview of the facts and the proceedings in the trial court.

Factual and Procedural Background

In July 2008, while in the process of remodeling his two properties in Tallahassee, Marocco went overseas for his employment. His neighbors, Russell and Rose Marie Brabec, offered to act as liaisons for Marocco with the contractors and laborers doing the remodeling work to ensure that the work was completed while Marocco was away. However, upon his return home, Marocco discovered that the Brabecs and their interior design firm, Design & More, Inc. (collectively, "Appellees"), had performed—and billed him for—significantly more work on the properties than he had authorized.

Thereafter, Marocco sued Appellees for damages, claiming that they breached their fiduciary duty to him, exceeded the authorized scope of work, acted negligently, and slandered his title by recording fraudulent liens. The damages sought by Marocco included the wages he allegedly lost because the liens recorded by Appellees on his properties adversely affected his top secret security clearance,² which in turn, cost him lucrative jobs with government contractors working on classified projects.

Appellees responded that all of the work they performed on Marocco's properties was done with his consent, and they filed compulsory counterclaims for breach of contract, unjust enrichment, and lien foreclosure through which they sought to recover payment for their work. They also filed a permissive counterclaim alleging that Marocco committed fraud during the litigation in order to get a prior judge off the case,³ but the trial court severed that counterclaim from the remaining claims shortly before trial and dismissed it "with leave to amend with the requisite specificity."

After a week-long trial, the jury found in favor of Marocco on his claims for breach of fiduciary duty, negligence, and slander of title. The jury also found in favor of Marocco on Appellees' lien foreclosure and breach of contract counterclaims, but the jury found in favor of Design & More on its counterclaim for unjust enrichment. The jury awarded Marocco a total of $ 511,625 on his claims and awarded Design & More $ 2,505.95 on its counterclaim.

The award to Marocco was comprised of $ 1,125 in damages on his breach of fiduciary duty and negligence claims against Mr. Brabec and $ 510,500 in damages (for his lost wages) on his slander of title claim against Design & More. No damages were awarded against Mrs. Brabec.

After the trial, and without a motion from Appellees,⁴ the trial court entered what amounts to a sua sponte judgment notwithstanding the verdict (JNOV) on Marocco's claim for lost wages based on the court's determination that (1) the lost wages claim was barred by the sword and shield doctrine⁵ and (2) Marocco's lost wages were not proximately caused⁶ by Appellees' wrongdoing and instead "were the direct result of his own decision ... to keep litigating" after the case had conditionally settled. The trial court entered final judgment in accordance with the remainder of the jury verdict, awarding $ 1,125 to Marocco and $ 2,505.95 to Design & More. The trial court declined to award attorney's fees to either party.

This appeal and cross appeal followed.

Analysis

Marocco raises seven issues on appeal: (1) the trial court erred in sua sponte raising the sword and shield doctrine and striking the jury award for lost wages; (2) the trial court erred in striking the jury award for lost wages based on a lack of proximate cause; (3) the trial court erred in relying on section 713.28, Florida Statutes, to strike the lost wages award; (4) the trial court erred in denying attorney's fees and costs to which a predecessor judge had previously awarded entitlement; (5) the trial court erred in denying attorney's fees and costs to Marocco pursuant to section 713.29, Florida Statutes ; (6) the trial court erred in denying attorney's fees and costs to Marocco pursuant to section 713.31, Florida Statutes ; and (7) the trial court erred in denying Marocco's motion for summary judgment on Appellees' counterclaim for unjust enrichment. On cross-appeal, Appellees raise only one issue: the trial court erred in dismissing their fraud counterclaim.

We affirm issues 4 and 7 without discussion, and we affirm issue 3 because, as Appellees correctly point out in their answer brief, the trial court did not rely on section 713.28, Florida Statutes, to strike the lost wages award. We dismiss the cross-appeal for lack of jurisdiction because an order dismissing a permissive counterclaim with leave to amend is a non-appealable nonfinal order, see Minty v. Meister Financialgroup, Inc ., 97 So.3d 926, 932 (Fla. 4th DCA 2012), and we reverse issues 1, 2, 5, and 6 for the reasons that follow.

On issue 1, we agree with Marocco that the trial court erred in raising the sword and shield doctrine sua sponte . The trial court's role is to adjudicate the case by ruling on the issues raised by the parties, not to litigate the case by raising issues for the parties. See, e.g. , Shore Mariner Condo. Ass'n v. Antonious , 722 So.2d 247, 248 (Fla. 2d DCA 1998) ("Trial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle."); Chastine v. Broome , 629 So.2d 293, 295 (Fla. 4th DCA 1993) ("Obviously, the trial judge serves as the neutral arbiter in the proceedings and must not enter the fray by giving ‘tips’ to either side."). Here, the record reflects that the sword and shield doctrine had not been raised in this case until the trial judge interjected it at a pretrial conference three weeks before the trial was set to begin.⁷ We recognize that Appellees subsequently raised the doctrine in their motions for directed verdict at trial, but that was only after the trial judge foreshadowed her post-trial ruling at another pretrial conference by expressing her unsolicited opinion that there had been a "major violation of [the sword and shield doctrine] in this case."

We also agree with Marocco that the trial court erred in applying the sword and shield doctrine in this case because, contrary to the finding in the final judgment that Marocco "block[ed] discovery" pertinent to his lost wages claim, the record shows that Marocco did not shield himself from the discovery of information relevant to that claim. Although early in the case Marocco did seek a protective order for all information related to his employment, no order was ever entered, and Appellees were ultimately able to depose Marocco and obtain relevant financial documents prior to trial. Although the disclosures and deposition occurred shortly before trial and well after the discovery cut-off, Appellees did not seek a continuance of the trial to obtain additional discovery or prepare for trial, and the trial court did not find that Appellees were prejudiced by the late discovery.⁸ Under these circumstances, it was an abuse of discretion for the trial court to strike the lost wages claim post-trial. Cf. Binger v. King Pest Control , 401 So.2d 1310, 1313-14 (Fla. 1981) (explaining that the trial court has discretion to exclude evidence that is not timely disclosed during discovery if the resulting prejudice to the opposing party cannot otherwise be cured); Village Inn Restaurant v. Aridi , 543 So.2d 778, 782 (Fla. 1st DCA 1989) (explaining that sanctions short of dismissal may be imposed under the sword and shield doctrine).

On issue 2, we agree with Marocco that the trial court erred in setting aside the jury's determination that Marocco's lost wages were proximately caused by Appellees' actions. Evidence was presented at trial from which the jury could—and apparently did—find that Marocco's lost wages were caused by the liens recorded by Appellees. Specifically, the jury heard evidence that Marocco informed Mr. Brabec several months before Appellees filed their liens that liens recorded in the public record would adversely impact his employment.⁹ Moreover, the court's post-trial ruling was not based on a consideration of the evidence presented to the jury, but rather on the court's opinion—informed by "the court's knowledge of the rest of the picture"—that Marocco's lost wages were solely caused by his failure to settle the case. If it is improper for a trial court to reweigh the evidence presented to the jury when ruling on a post-trial motion for JNOV—and it is, see New Jerusalem Church of God, Inc. v. Sneads Community Church, Inc. , 147 So.3d 25 (Fla. 1st DCA 2013), it is equally, if not more, inappropriate for the court to grant a JNOV sua sponte based on information that was not presented to the jury.

Based on the foregoing, we reverse the JNOV granted by the trial court with respect to Marocco's lost wages and remand for entry of an amended final judgment in accordance with the jury verdict on that issue.

On issue 5, we disagree with Marocco's...